My Employer Is Forcing Me to Retire. Is That Legal?

In most professions, forced retirement based on age is illegal. Although many employers once used mandatory retirement ages to manage their workforce, this practice was largely eliminated with the passage of the federal Age Discrimination in Employment Act (ADEA).

The ADEA prohibits discrimination against employees who are at least 40 years old in any aspect of employment—including hiring, firing, promotions, layoffs, pay, benefits, job assignments, and training. In short, employers cannot treat older workers less favorably simply because of their age.

The law also protects employees from retaliation if they speak up about age discrimination, file a complaint with a government agency, or participate in an age discrimination lawsuit. The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing the ADEA and investigating complaints.

What Is the ADEA and Who Is Covered?

The ADEA applies to private employers with 20 or more employees, as well as to federal, state, and local governments, employment agencies, and labor organizations.

The law protects not only current employees but also job applicants who are 40 years of age or older.

The ADEA is specifically designed to prevent age bias against older workers. It does not cover so-called "reverse discrimination"—meaning employers are allowed, under federal law, to favor an older worker over a younger one, even if both are qualified. This makes it distinct from other antidiscrimination laws, like those prohibiting race or sex discrimination, which protect all people.

Can You Be Forced to Retire?

When the ADEA was passed in 1967, it protected only workers aged 40 to 65. At that time, employers could still require workers to retire once they reached 65. However, the law was amended in the 1980s to remove the upper age cap. Today, mandatory retirement based solely on age is generally illegal. Employers cannot simply decide that an employee must step down because they've reached a certain birthday.

As is often the case, there are a few exceptions to this general rule. Although employers generally may not adopt a mandatory retirement age, an employer may consider age in the following circumstances:

Public Safety Officers

State and local governments may institute a mandatory retirement age of 55 or older for firefighters and law enforcement officers.

Executives and Policy Makers

Employers may require a high-ranking employee to retire or step down to a lesser position if the employee is at least 65 years old; the employee has worked for at least the past two years as a bona fide executive or in a high policy-making position; and the employee is entitled to an immediate, nonforfeitable annual retirement benefit of at least $44,000 from the employer.

Bona Fide Occupational Qualification (BFOQ)

An employer may consider age in filling a job if age is a BFOQ – that is, if the job, by its very nature, must be filled by an employee of a particular age. This defense is available to an employer only if the age limit or other age-related policy is reasonably necessary to the essence of the employer's business.

One of the following must also be true:

• All or substantially all people who are older than the age limit would be unable to perform the job; or
• Some people who are older than the age limit would be unable to perform the job and testing each person individually to determine whether they can perform the job would be impossible or highly impractical for the employer.

If the employer's goal in using the BFOQ is public safety, the employer must also show not only that the age limit achieves that goal, but also that there is no acceptable alternative that is less discriminatory. As you can see by these strict requirements, the BFOQ defense will not apply to most occupations.

Do You Need Help From an Employment Lawyer?

Even though forced retirement is largely prohibited, age discrimination still occurs, often in subtle ways. You might be told your job is being eliminated—only to see a younger worker step into your role—or that you're being laid off because your skills are "no longer a fit" for the company. If you suspect your age is being used against you, you should consult an experienced employment attorney.

This is especially true if you're offered a severance agreement or asked to sign a waiver of your right to sue for age discrimination. The ADEA has strict rules about these waivers: you must be advised in writing to consult with a lawyer, given 21 days to review the agreement, and provided seven days to revoke it after signing. These requirements are designed to ensure you fully understand the rights you're giving up.

Before signing anything, make sure you understand the value of your claim. An experienced lawyer can help you determine whether the severance package reflects a fair settlement or whether you'd be better off negotiating for more—or even taking legal action.